Jerome A. Cohen and Mizuki Koshimoto. Has Japan Found The Best Way For Ordinary Citizens To Take Part In Deciding Criminal Cases? SCMP (South China Morning Post)

August 16, 2011

As China, Taiwan and South Korea consider how ordinary citizens can best take part in deciding serious criminal cases, they should study the Japanese model. In 2009, Japan, after years of careful planning, introduced a system that provides for six laymen to join three professional judges in adjudicating issues of both guilt and punishment. Thus far, this system appears to be successful.

Many Japanese feared the worst when the idea was first proposed – laymen might be too emotional, partisan and untrained to analyze complex situations. From 1928-43, Japan had unsuccessfully experimented with an optional “consultative” criminal jury, which most defendants spurned. Subsequently, conservative experts and much of the public continued to think that justice was better left to judges and prosecutors, generally respected as fair and objective. This reflected the traditional Japanese belief that “officials know best.” Because of this belief and their lack of legal experience, laymen, some commentators said, could not resist the opinions of judges, and their participation would be a sham. Moreover, surveys confirmed that most Japanese did not want to participate in criminal adjudication.

Yet, to stimulate recovery from Japan’s financial crisis, in the early 1990s the government launched a deregulation policy designed to restrict official power. Coincidentally, popular confidence in judicial professionals began to erode. Criminal trials were increasingly criticized as inexcusably slow and hard to understand. Courts were also accused of being too lenient to juveniles and indifferent to victims. Some lawyers and other legal experts believed that judges enjoyed too cozy a relationship with prosecutors and failed to allow defendants and their counsel a fair hearing in accordance with Japan’s nominally adversarial system. The tipping point in this accumulation of grievances was widespread anger over the courts’ handling of the prosecution of terrorists who had launched the infamous 1995 Sarin gas attacks in Tokyo subways.  Many gas victims stated on national television that “the criminal trials do not represent our feelings at all”. The media and the government endorsed popular participation as a way of injecting public opinion into trials and enhancing public understanding. Reformers also hoped to make trials quicker, fairer and more intelligible and deserving of public confidence, and restricting judges’ powers fit nicely into the new deregulation policy. Finally, in 2004, Japan’s legislature concurred that justice is too serious to be left to professionals alone and adopted the Act Concerning Participation of Lay Assessors in Criminal Trials. This Act applies to  certain serious crimes including murder, rape, robbery involving injury and arson of inhabited buildings, with no opportunity for either the court or the accused to choose a trial adjudicated exclusively by professionals.

 One distinctive feature of the new system is that “lay assessors” are initially chosen at random for every new case, rather than selected via recommendations to serve for a fixed period in multiple cases, as in Germany, France and Italy. Assessors and judges have equal powers in deciding both guilt and punishment. Decisions are made by majority vote, so long as one judge votes with the majority.

The  new system has benefited from important procedural innovations. A pre-trial hearing enables judges, prosecutors and defense lawyers to meet, before  assessors have been selected, to clarify trial arrangements and determine the major issues and evidence to be considered. A second significant innovation requires assessor trials to be conducted on consecutive days, rather than in sessions often widely separated in time. A third reform, common to all criminal cases, allows victims or their representatives to question witnesses and defendants and to express their opinions concerning guilt as well as sentencing. Assessors can also ask questions. Finally, to promote fairness and equality in sentencing, Japan’s Supreme Court provides the new panels, the prosecutors and the defense with databases disclosing how similar offenders were punished by mixed tribunals.

Now that roughly 2,500 cases have been tried under the new system, preliminary trends have emerged. Trials are concluded faster. Although panel deliberations are confidential, both judges and assessors seem to be adapting well to the challenges of cooperation. Emotions and partisanship appear to be less of a problem than anticipated. The previous conviction rate for prosecuted cases, over 99%, has not noticeably diminished, especially since prosecutors seem more cautious than ever in bringing indictments. In sentencing, the mixed tribunals appear only modestly freer than previous courts from  the custom of generally sentencing the accused to 80% of whatever punishment prosecutors requested. Yet they now give more nuanced consideration to the circumstances of each case, sometimes showing greater sympathy for the accused and other times dispensing stiffer punishment. Even though, overall, sentences seem mostly unchanged, one clear difference is that more defendants now receive suspended sentences, and these defendants are much more often concurrently sentenced to probation programs stressing rehabilitation.

Perhaps the most significant developments are the subtlest. Prosecutors have reportedly become more careful in reviewing defendants’ pre-trial confessions to police and taking account of evidence favorable to defendants. The Supreme Prosecutors Office recently announced that, in cases subject to lay assessor trials, it is planning to have the entire interrogation of the accused videotaped. and that prosecutors should respect the results of such trials as much as possible. Most fascinating, judge-assessor arrangements have breathed new life into Japan’s adversarial trial by emphasizing oral testimony of witnesses in court, including their cross-examination, instead of maintaining the tradition, imported from continental Europe, of judges focusing on review of the pre-trial dossier. Although there are still few acquittals, both judges and assessors give the impression that mixed tribunals are more open-minded than professional courts and more skeptical of pre-trial confessions.

Many issues remain unresolved. Should the scope of crimes subject to mixed trials be expanded or contracted? Do defendants have a constitutional right to choose the type of trial? Should assessors receive special preparation for unusually difficult cases, such as those involving insanity? How should the new panels apply the presumption of innocence? What about the administrative burdens, time and expense of selecting fresh assessors for every case? Do assessors really resist the knowledge and prestige of judges? Can defense lawyers improve their skills to match their new opportunities?

Nevertheless, Japan’s version of the mixed tribunal is off to an impressive start and may make the merely “consultative” juries practiced in South Korea, experimented with in China and contemplated in Taiwan look timid by comparison. Are those East Asian jurisdictions underestimating their ordinary citizens?

This article was published with some editing in the South China Morning Post on August 16, 2011, under the title “People’s Court.” Illustration from SCMP.  It was published in Chinese in the China Times (Taiwan) on August 18, 2011. (繁体中文)(简体中文)。

 Jerome A. Cohen is professor and co-director of the US-Asia Law Institute at NYU School of Law and adjunct senior fellow at the Council on Foreign Relations.Mizuki Koshimoto is a Tokyo and New York lawyer and a 2010 recipient of NYU Law School’s LLM degree.  See also